On the night of Tuesday, March 8, the city council of Plainview (pop. 22,343) considered an ordinance that would outlaw abortion within their city limits. The consideration of the ordinance was the result of the certification of the citizen initiative petition signatures. In accordance with Section 10.06 of the Plainview City Charter, the city council was obligated to “promptly consider the proposed initiative ordinance in the manner prescribed for enacting ordinances.” According to their city charter, the city council had two choices for an ordinance prompted by a citizen initiative: either “adopt a proposed initiative ordinance without any change in substance” or “call an election on the proposed … ordinance.”

Instead of choosing to “adopt a proposed initiative ordinance” in a way which was similar to 43 of the 44 cities that had passed the ordinances, the city council voted 5-1 to “call an election on the proposed … ordinance” for the May 7 election.

The motion was made by Councilman Larry Williams and seconded by Councilman Evan Weiss. Councilwoman Susan Blackerby was the only member of council present who voted against calling an election on the proposed ordinance for the May 7 election. City attorney Matthew Wade, who previously worked for Olson & Olson (the law firm with family ties to Planned Parenthood), was responsible for the recommendation of the May 7 date.

Had the city council voted for the ordinance to go to the ballot at the next available election, their decision would appear to have been in accordance with their city charter and the laws of the State of Texas. Unfortunately, the motion was made calling for an election on the ordinance on May 7, 2022, an election date the State of Texas does not appear to authorize the City of Plainview to add a ballot measure for at this time.

According to the secretary of state’s website, the “last day to order general election or special election on a measure” for the Saturday, May 7, 2022, uniform election date was Friday, February 18, 2022. If the secretary of state’s website is correct, this would appear to mean that the vote made by the Plainview City Council is not in accordance with the Texas Election Code.

If the City of Plainview were to move forward with the ballot measure and hold an election on the Plainview Ordinance Outlawing Abortion on May 7, the results of that election could be declared void, as it would have been an illegal election measure on the basis of an improper date. This is addressed in Texas Election Code, Sec. 41.008: “EFFECT OF HOLDING ELECTION ON IMPROPER DATE. An election held on a date not permitted by this subchapter is void.”

The Plainview mayor and city council may not realize it yet, but they will have to hold another vote to either “adopt a proposed initiative ordinance without any change in substance” or “call an election on the proposed … ordinance.” At that meeting, anyone who wants to speak for or against the ordinance will have to be given an opportunity to do so.

The date of the election was not the only thing the Plainview City Council got wrong. Before public comment, Mayor Charles Starnes stated that only five people could speak on each side—violating standards set by the Texas Open Meetings Act. Texas Government Code Sec. 551.007(b) is clear when it reads, “A governmental body shall allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting of the body to address the body regarding the item at the meeting before or during the body’s consideration of the item.” By limiting how many people can speak on an agenda item, Mayor Starnes violated this statute, which requires any member of the public to speak if they so desire.

After the city council meeting, several shared concerns about how the meeting was conducted, as it appeared the city council had already made a decision prior to the public hearing of the ordinance.

Those concerns were not alleviated by the revelation that the city clerk had already asked for a Spanish version of the Plainview Ordinance Outlawing Abortion on Friday, March 4—four days before the public vote by the city council. The Spanish version of the ordinance is only necessary if the ordinance is going to be sent to the ballot for voters to decide.

Prior to their decision Tuesday night, a director from Right To Life of East Texas provided quotes from several mayors and city council members of cities across the United States who had passed similar ordinances. Mayor Starnes told the director to leave those documents with the city manager. One quote which was shared was from the mayor of Big Spring, Texas (population 28,862), whose city passed the ordinance in January 2020. Mayor Shannon Thomason wrote, “I commend the Plainview City Council on undertaking this difficult decision. I would encourage them to consider the will of their constituents, pass the ordinance tonight, and save their taxpayers the added expense of putting the ordinance on the November ballot. Be bold and choose life!”

Another quote was from Councilwoman Mary Engledow of Levelland, Texas (population 14,582), whose city had passed the ordinance in June 2021. She wrote, “I encourage Plainview to listen to their constituents and pass the ordinance tonight. Keep abortion out of Plainview just like Levelland did. Had we put the ordinance to a vote of our people, Planned Parenthood may have set up shop in Levelland just like they did in Lubbock when their council chose not to pass the ordinance when they had the opportunity to. Babies were killed in Lubbock because of the inaction of their city council. That is why we had to act ourselves. We love Levelland and we just could not risk Planned Parenthood setting up shop and hurting our residents by taking the lives of their children.”

It is not believed that those documents were considered by the mayor and city council before their decision.

Several also raised concerns that city attorney Matthew Wade might be working against the passage of the Plainview ordinance. When citizens first approached the City of Plainview, the petition forms they received from the city clerk (which were obtained from the city attorney) were not consistent with state law.

The secretary of state website gives clear information regarding petition requirements under Chapter 277 of the Texas Election Code. According to the Texas Election Code, valid petition signatures do not have to have both the “birth date” and the “voter registration number,” but they must have one or the other. The secretary of state website is clear on this point, stating, “The petition must have (1) birth date or voter registration number, and (2) the residence address.” Had the petitioner’s committee turned in the required number of signatures to the city council without a “birth date” or a “voter registration number,” the entire petition could have been declared invalid—just like the election results could be declared invalid if the Plainview City Council moves forward with a May 7, 2022, election date that the city has no authority to allow. While some believe city attorney Matthew Wade’s errors were innocent, others are not so sure—especially since he has discouraged the passage of the ordinances in several West Texas cities.

Despite the Plainview Herald running with the headline reporting “Plainview citizens to decide if city becomes sanctuary for unborn,” attorney Matthew Wade admitted that if they did get the May 7, 2022, election date wrong, they would have to revisit the process to either “adopt a proposed initiative ordinance without any change in substance” or “call an election on the proposed … ordinance.” The Plainview Herald article made no mention of the date of the May 7, 2022, election date voted on by the city council.

While several members of the initiating committee wait until the confusion is sorted out in Plainview, elected officials in other cities across the state are discussing the possibility of placing an ordinance outlawing abortion on their city’s agenda. Those interested in seeing abortion outlawed in their city are encouraged to sign the Sanctuary Cities for the Unborn Initiative’s online petition.

This is a commentary published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to submission@texasscorecard.com.

Mark Lee Dickson

Mark Lee Dickson is a director with Right to Life of East Texas and the founder of the Sanctuary Cities for the Unborn Initiative.